IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1998 SESSION
July 15, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. # 01C01-9706-CC-00215 Clerk
Appellate Court
Appellee, * RUTHERFORD COUNTY
VS. * Hon. James K. Clayton, Jr., Judge
EARNEST EUGENE TRAVIS, * (Driving Under the Influence)
Appellant. *
For Appellant: For Appellee:
Peter D. Heil, Attorney John Knox Walkup
P.O. Box 40651 Attorney General and Reporter
Nashville, TN 37204
(on appeal) Daryl J. Brand
Assistant Attorney General
David E. Brandon, Attorney 425 Fifth Avenue North
211 Third Avenue North Second Floor, Cordell Hull Building
Nashville, TN 37201 Nashville, TN 37243-0493
(at trial and on appeal)
William E. Whitesell
District Attorney General
Third Floor, Judicial Building
Murfreesboro, TN 37130
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Earnest Eugene Travis, was convicted in a bench trial
of driving under the influence of an intoxicant. The trial court imposed a sentence of
eleven months and twenty-nine days, granted supervised probation after forty-eight
hours in jail, and revoked the driver's license of the defendant. In this appeal of
right, the defendant challenges the sufficiency of the evidence, argues that the
opinion testimony of the police officers should have been excluded, and contends
that the trial judge impermissibly considered personal knowledge in making his
decision.
We find no error and affirm the judgment of the trial court.
At 2:00 A.M. on August 9, 1995, Officer Stacey Thompson of the
Lavergne Police Department observed a red Toyota driven by the defendant
weaving along a public road. After stopping the defendant's vehicle, Officer
Thompson detected a strong odor of alcohol. According to the officer, who
administered field sobriety tests, the defendant "failed to perform satisfactorily." In
Officer Thompson's opinion, the defendant was intoxicated.
Sergeant Sam Spicer, who performed a breathalyser test, testified
over objection that he believed the defendant to be intoxicated. The result of the
test was excluded, however, because the defendant was not observed for the
requisite period of time.1
1
The trial court found that the defendant had been observed for seventeen minutes rather
than the tw enty min utes req uired by law. See State v. Sensing, 843 S.W .2d 412 ( Tenn . 1992).
2
The defendant acknowledged that he had consumed between three
and six beers over a period of six to seven hours while he had been fishing with his
brother. He explained that he had been barefoot when he performed the field
sobriety test.
There was no transcript of the trial. A statement of the evidence
prepared by counsel for the defendant serves as the record.
The statement, filed by the defendant in lieu of a transcript under
Tenn. R. App. P. 24(c), makes reference to the comments of the trial judge:
[T]he judge indicated that he attended a judicial seminar
which had addressed the number of drinks that would
result in intoxication and based on such information
found the defendant guilty of D.U.I. and assigned first-
time D.U.I. sanctions.
The state filed no objections to the content of the statement of the
evidence and otherwise chose not to supplement the narrative summary of the proof
presented in the trial court.
The initial challenge is to the sufficiency of the evidence. On appeal,
the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn therefrom. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be
given their testimony, and the reconciliation of conflicts in the testimony, however,
are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978). A conviction can be set aside only when
the reviewing court finds that the "evidence is insufficient to support the finding by
the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13 (e). In a
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bench trial, the trial judge's findings on questions of fact are given the weight of a
jury's verdict. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978); State v.
Hatchett, 560 S.W.2d 627 (Tenn. 1978).
In our view, the evidence was sufficient to support the conviction.
While the statement of the evidence obviously did not include all of the testimony at
trial, each of the elements of driving under the influence of an intoxicant were
established. Tenn. Code Ann. § 55-10-401. The defendant admitted that he had
consumed several beers. The record indicates that his car was weaving just before
his arrest. He failed one or more sobriety tests and each of two officers held the
opinion that the defendant was intoxicated.
Next, the defendant argues that the trial judge should have excluded
the opinion testimony of the two officers that the defendant was intoxicated. The
defendant insists that there was no foundation for the testimony. We disagree.
Rule 701(a) of the Tennessee Rules of Evidence permits a lay witness
to express an opinion if (1) the opinion is "rationally based on the perception of the
witness," and (2) it is "helpful to a clear understanding of the witness's testimony or
the determination of a fact in issue." The statement of evidence suggests that each
of the two officers had a reasonable opportunity to observe the demeanor of the
defendant. One of the officers who made the arrest administered a field sobriety
test. The other observed the defendant for several minutes before administering a
breathalyser test. The Advisory Commission Comments to Rule 701 provide that "a
lay witness may testify that a person was 'drunk' or that a car was traveling 'fast.'"
The record establishes that each of the lay witnesses had a basis for rendering his
opinion.
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As his final argument, the defendant submits that what the trial judge
had learned at a judicial seminar about the number of drinks that would result in
intoxication qualified as extra-judicial evidence rendering the verdict unreliable. In
Vaughn v. Shelby Williams of Tennessee, Inc., 813 S.W.2d 132 (Tenn. 1991), our
supreme court established guidelines governing extra-judicial observations:
There is ample authority for the proposition that a judge
is not to use from the bench, under the guise of judicial
knowledge, that which he knows only as an individual
observer outside of the judicial proceedings. 9 Wigmore,
Evidence, § 2569 at 723 (1981). Judicial knowledge
upon which a decision may be based is not the personal
knowledge of the judge, but the cognizance of certain
facts the judge becomes aware of by the virtue of the
legal procedures in which he plays a neutral role. State
v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 188
(1968). No judge is at liberty to take into account
personal knowledge which he possesses when deciding
upon an issue submitted by the parties. Laurance v.
Laurance, 198 Ore. 630, 258 P.2d 784, 787 (1953). In
other words, "[i]t matters not what is known to the judge
personally if it is not known to him in his official capacity."
Galbreath v. Noland, 58 Tenn. App. 260, 429 S.W.2d
447, 450 (1967).
In Vaughn, a worker's compensation case, the trial judge remarked in
his memorandum opinion that he had observed the claimant on three separate
occasions outside of the courtroom. The trial judge observed, "This man looks and
walks a little better than death warmed over," before determining that the claimant
had an eighty percent permanent-partial disability to the body as a whole. The
supreme court reversed the judgment and remanded for a new trial with a different
judge.
This case is distinguishable on the facts. The trial judge knew nothing
of the particular circumstances of this offense except through the evidence
presented by the state and the defense. Because there is no verbatim transcript of
this trial, it is difficult to assess the context in which the reference to a judicial
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seminar was made. The general knowledge of a trial judge about the effects of
alcohol or general knowledge otherwise acquired through professional training is
almost inevitably a part of a judicial determination in a bench trial. "Although
litigants are entitled to a judge who will hear both sides and decide an issue on the
merits of the law and the evidence presented, they are not entitled to a judge whose
mind is a clean slate. Each judge brings to the bench the experiences of life, both
personal and professional." Madsen v. Prudential Fed. Sav. & Loan, 767 P.2d 538,
546 (Utah 1988) (emphasis added); see generally, Montegut v. Davis, 473 So. 2d
73, 80 (La. App. 1985) ("Obviously a judge cannot decide cases in a vacuum; we all
must use our accumulated knowledge and experience in evaluating evidence and
determining what makes one witness more believable than another. Under the
circumstances, the judge's mention of his knowledge [of local real estate trends]
was harmless error if it was error at all.") Discretion suggests that references to
these ordinary experiences are often better left unsaid. W hether those matters
qualify as reversible error, however, depends upon the extent and context of the
remarks in view of the evidence presented at trial. See generally, State v. Raines,
882 S.W.2d 376, 385 (Tenn. Crim. App. 1994)(sentence affirmed although trial
judge erroneously applied enhancement factor based on trial judge's recollection of
having seen the victim rather than evidence presented to the court by the parties);
see also Kay E. Blackwood v. Berkline Corp., No. 01S01-9609-CV-00190 (Tenn.,
May 21, 1997)(harmless error for trial judge to take judicial notice of the credibility of
a witness). Here, there was sufficient evidence to support the conviction. The trial
judge had a sound basis for a determination of guilt and, when confronted with his
extra-judicial statement at the motion for new trial, he nonetheless declined relief. It
is the duty of the appellant to prepare a record which conveys a fair, accurate, and
complete account of what transpired in the trial court with respect to the issues
which form the basis of the appeal. State v. Miller, 737 S.W.2d 556 (Tenn. Crim.
6
App. 1987); Tenn. R. App. P. 24(c). In the absence of a more complete record for a
determination on a particular issue, this court must conclude that the trial court
correctly ruled. See Smith v. State, 584 S.W.2d 811 (Tenn. Crim. App. 1979);
Vermilye v. State, 584 S.W.2d 226 (Tenn. Crim. App. 1979).
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
L. T. Lafferty, Special Judge
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